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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Precautionary principle states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat. (Section 4[f], Rules of Procedure for Environmental Cases)
The precautionary principle is recognized as a fundamental concept in international environmental law to mitigate uncertain, unpredictable, and unquantifiable threats to the environment.
At present, the precautionary principle holds a significant place in an increasing array of laws and legal decisions, attracting considerable attention. In fact, the precautionary principle has been integrated into numerous conventions and treaties, adopted by many countries in their domestic and regional laws, indicating its evolution into customary international law. In our jurisdiction, the precautionary principle is incorporated in A.M. No.09-06-06 or the Rules of Procedure for Environmental Cases.
These conventions, treaties, foreign laws, and Philippine statutes, despite variations in defining the precautionary principle, share common essential elements, including “uncertainty, the threat of environmental damage or human health risks, and serious or irreversible harm.”
Common Elements of Precautionary Principle
Pursuant to the Science and Environmental Health Network, in all designs of the precautionary principle, the following are the three (3) common elements:
- There is a reasonable suspicion of harm;
- There is a scientific uncertainty about cause and effect; and,
- The duty to take action to prevent said harm.
Reasonable Suspicion of Harm
An action should be taken when there is a justified concern or suspicion that a particular activity, substance, or policy may cause harm to human health or the environment. It does not require conclusive evidence but rather a rational basis for concern. The goal is to address potential risks before they materialize into significant harm.
Scientific Uncertainty on the Cause and Effect
The precautionary principle is often invoked in situations where there is scientific uncertainty regarding the cause-and-effect relationship between a certain activity, substance, or policy and potential harm. This recognizes that waiting for absolute scientific certainty may lead to delayed action and increased risk. The principle encourages a proactive approach, acknowledging that emerging scientific evidence may not always provide conclusive answers.
Duty to Take Action
Lastly, the precautionary principle emphasizes a societal or ethical responsibility to take preventive measures in the face of potential harm, especially when the first two elements are present. It implies that in the absence of absolute certainty, there is still an obligation to act in order to minimize or prevent harm. This duty extends to policymakers, industries, and individuals who are in a position to influence or control activities that may pose risks.
When is the Precautionary Principle Applicable in our Jurisdiction?
Under Section 1, Rule 20 of the Rules of Procedure for Environmental Cases, the precautionary principle as a rule of evidence is applicable when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology is given the benefit of the doubt.
What are the Standards to be Considered for its Application in our Jurisdiction?
In applying the precautionary principle, the following factors, among others, may be considered:
1) Threats to human life or health;
2) Inequity to present or future generations; or,
3) Prejudice to the environment without legal consideration of the environmental rights of those affected. (Section 2, Rule 20, Rules of Procedure for Environmental Cases)
What does Jurisprudence say on Precautionary Principle?
In Gemma Dela Cruz vs. Manila Electric Company (MERALCO), G.R. No. 197878, November 10, 2020, the Supreme Court explained precautionary principle in the following manner:
In Mosqueda v. Philippine Banana Growers (G.R. No. 189185, August 16, 2016), this Court said that there must be uncertainty for the precautionary principle to apply. As a “principle of last resort,” the precautionary principle has no application “where the threat is relatively certain, or that the causal link between an action and environmental damage can be established, or the probability of occurrence can be calculated.” Moreover, the precautionary principle “does not sanction a suspension of judicial rules with respect to evidence, reason, and legal interpretation.”
Reading Rule 20 and its interpretation in Mosqueda, it appears that our jurisdiction adopts the weak version of the precautionary principle, as opposed to its strong version.
In an article titled, The Paralyzing Principle, Professor Cass Sunstein (Prof. Sunstein) defined the weak version of the precautionary principle to mean “that a lack of decisive evidence of harm should not be a ground for refusing to regulate.”
On the other hand, the strong version of the precautionary principle requires governmental regulation “whenever there is a possible risk to health, safety, or the environment, even if the supporting evidence is speculative and even if the economic costs of regulation are high.”
In essence, the precautionary principle as a general, is a guiding framework that suggests taking preventive action even in the absence of complete scientific certainty when there is a reasonable suspicion of harm. It reflects a proactive and responsible approach to decision-making in the realms of science, environment, and public health.
Read also: On Minors Representing their Generation and Generations Yet Unborn in Filing an Environmental Case
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